PRISONER VOTES AND THE DEMOCRATIC DEFICIT

I posted recently on the ongoing saga surrounding the UK’s implementation of the Hirst No. 2 case, in which the European Court of Human Rights found that the UK’s blanket ban on prisoners voting was a breach of the European Convention on Human Rights. The correspondence between the court and the UK Government is now available and I have reproduced it below.

In short, the UK previously had until 11 October 2011 to “introduce legislative proposals” to end the ban. But it has now been given a reprieve as a result of seeking to intervene in another case, Scoppola v Italy (No. 3) (available in French, English press release here), which is going to the court’s Grand Chamber This is another prisoner voting case.

The Foreign and Commonwealth Office (FCO) wrote to the Strasbourg court on 26 July 2011 asking for permission to intervene in Scoppola, which is another prisoner voting case. Although the FCO accepts that legislation challenged the Italian case is “more onerous” than in the UK (some prisoners in Italy are disenfranchised for life),

"On any view, it is likely that the judgment of the Grand Chamber in Scoppola will have a direct impact on the question of which legislative proposals should be brought forward in order to comply with the judgment in Greens and MT."

The FCO also referred to another prisoner voting case, Frodl v Austria (see my post), which “in the Government’s view, is inconsistent with Hirst”. In that case the court went further than simply saying a blanket ban was incompatible with the EHCR, stating:

"There should be a direct link between the facts on which a conviction is based and the sanction of disenfranchisement; and such a measure should preferably be imposed not by operation of a law but by the decision of a judge following judicial proceedings."

The Government would not be alone in worrying about Frodl; legal blogger Carl Gardner has argued that in that case

"the ECtHR went rogue, stepping beyond its proper role, ignoring a key principle of restraint and even distorting the meaning of its own earlier judgment in order to justify going much further. Frodl really is a stinker of a judgment."

The Court responded to the FCO on 30 August 2011:

"Having regard to the lapse of almost six years since the ruling of the Grand Chamber in Hirst… to the fact that a general election took place in May 2010 and that no measures had been put in place… and to the further lapse of time which would occur pending the delivery of the Grand Chamber judgment in Scoppola (no. 3), the Chamber cannot contemplate any further unnecessary delay."

So the Chamber cannot contemplate “any further unnecessary delay”. Except…

"The Chamber would therefore regard as reasonable an extension of six months after the date of the Grand Chamber judgment in Scoppola (no. 3) for the introduction of a Bill to Parliament."

The UK therefore has until six months after the Scoppola judgment, which could be a year away, to introduce a bill to Parliament. My view is that it is very unlikely that the Grand Chamber will reverse its own ruling in Hirst No. 2, and the UK will still therefore be obliged to let some prisoners vote.

But the Government may be right that Frodl took things too far. Taken to its logical conclusion, the effect of Frodl would be to give practically all prisoners the vote, which does raise questions of whether the court is providing any wriggle room (the “margin of appreciation”) to states at all. Although the court is in many senses a federal court of Europe and sometimes must lead from the front on issues – such as blanket disenfranchisement of prisoners – there does seem to be a legitimate debate between states as to what categories of prisoners should remain restricted from voting.

It is important to remember that our Parliament has signed up to “abide by the final judgment” (ECHR Article 46) of the court. This usually works fine, and given a little cajoling the UK government does eventually implement decisions against it, which amounted to a grand total of 17 in 2010. But the prisoner voting issue has stretched the government’s relationship with the court and no resolution is in sight.

The Government argues that the will of the people is against prisoners voting and that Parliament has also expressed its strong view, albeit in a non-binding vote. This raises wider issues; as the Justice Secretary Ken Clarke said recently in his evidence to the European Scrutiny Committee:

"the big issue is subsidiarity. It is accepted on all sides that the main duty of complying with the European Convention on Human Rights lies on the Governments of the member states. … very broadly, we have to decide to what extent the court in Strasbourg takes into account the judgments of national courts, the judgments of national Parliaments, when they have acted in accordance with what they believe to be their obligations under the Court of Human Rights."

“Subsidiarity” is a trendy way of talking about the margin of appreciation (see this article), but in Ken Clarke’s view it is also a code word for the perceived “democratic deficit” in the operation of the court and, as Joshua Rozenberg has written, a spur for the ongoing movement to reform it.

Things should not be taken too far. Just because the UK disagrees with a judgment does not mean there is a “democratic deficit” in the structure of the court. It is the court’s role, to an extent, to protect unpopular sections of society. But it must also try to ensure that it does not undermine its own authority by imposing too much, too fast.

I suspect that the Grand Chamber has accepted the referral request in Scoppola in order to clarify the apparent conflict between Hirst No. 2 and Frodl, and probably to reduce the effect of Frodl and give states a wider range of choice. Otherwise it risks falling out with the UK and Italy who may simply refuse to implement the rulings. Successive UK governments should probably have done more to implement the ruling but, given the issues raised by Frodl, this problem is also to an extent of the court’s own making.

By: Adam Wagner

Adam Wagner is a founding editor of the UK Human Rights Blog. He is a barrister specialising in public law, human rights and medical law, and was longlisted for the 2011 Orwell Prize for blogging. He can be found on Twitter as @AdamWagner1